March 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM ROBERTS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-01-0181.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 25, 2009
Before Judges Cuff and Baxter.
Following a jury trial defendant William Roberts was convicted of one count of third degree burglary, N.J.S.A. 2C:18-2. Three counts of burglary were dismissed prior to trial and one count of possession of a motor vehicle master key was dismissed at the close of the case. Defendant was sentenced to five years imprisonment.*fn1 The appropriate penalties and assessments were also imposed.
On October 20, 2005, Jersey City Police Officers John Ransom and John Joy were patrolling a ten block area between Belmont Avenue and Journal Square and between Westside and Bergen Avenues in Jersey City. It was an area with a history of many motor vehicle and residential burglaries. The officers were dressed in plain clothes and drove an unmarked vehicle. Officer Ransom drove; Officer Joy rode in the front passenger seat.
As the officers approached the intersection of Kennedy Boulevard and Fairmount Avenue, they spotted defendant exiting the passenger side of a Nissan Altima with New York license plates parked at the southeast corner of Fairmount Avenue and Kennedy Boulevard. Officer Ransom noticed defendant rummaging through items on the front seat.
Officer Joy got out of the car and followed defendant on foot. When he approached the Nissan, he looked inside. He saw an open glove box and items strewn about the front seat. Officer Joy requested a motor vehicle look-up, directed Officer Ransom to Duncan Avenue, and followed defendant on foot to an apartment building at 37 Duncan Avenue.
Officer Joy remained outside 37 Duncan Avenue. Twenty or thirty minutes later, defendant emerged from the building walking briskly. As defendant walked eastbound on Duncan Avenue to Bergen Avenue, Officer Ransom took over surveillance of defendant.
Ransom, with the aid of Jersey City Police Officers Morgan Torres and Rob Majori, arrested defendant on Monticello Avenue between Fairmount and Jewett Avenues. Officer Ransom patted down defendant and found a twelve-inch screwdriver, a set of automobile keys, and two bent plastic cards.
Officer Joy opened the Nissan using the keys found on defendant. Through a piece of mail found in the vehicle, the officer went to an apartment on Fairmount Avenue occupied by Adil Chenrhaoui. The officer advised Chenrhaoui of the burglary of his vehicle and asked him to accompany the officers to his car. Officer Joy used the key found on defendant to open and start the vehicle. Chenrhaoui used his key to do the same. Neither the officer nor the owner observed any damage to the Nissan's windows, locks, or ignition.
Chenrhaoui testified he and his wife held the only two sets of keys to the Nissan and that the key Officer Joy used to open and start the Nissan was "different" than the keys he and his wife held. Chenrhaoui also testified that the glove box was closed and papers and CDs were not strewn across the front passenger seat when he left the car. Chenrhaoui did not know defendant and had not given defendant permission to enter his vehicle.
Defendant testified at trial. He stated that on October 19, 2005, he was in the area of the A. Harry Moore Housing Project near Duncan Avenue, Jersey City, because he was visiting his girlfriend. He left his girlfriend's home around 2:30 p.m. the next day and walked toward Kennedy Boulevard. While he was walking, he called another female friend, "Shorty," who invited defendant in to visit her at 32 or 37 Duncan Avenue. While defendant was visiting Shorty, defendant's sister called to say she had lost her car keys and had parked her car at Summit Avenue and Astor Place. Defendant left 37 Duncan Avenue and sat on a wall on Duncan Avenue to instant message his friend to help him with the car. Defendant then began to walk toward Monticello Avenue, where he was arrested.
Defendant denied ever being on Fairmount Avenue that day and denied ever having seen the Nissan Altima. Defendant explained that his sister's car was a Nissan Maxima and the Nissan keys seized by Officer Ransom were the keys to his sister's car. Defendant testified that because the police took his keys, he had to pay $200 to have a new set made "by Acura." Finally, defendant testified that Officers Joy and Ransom had arrested him in the past and Officer Joy "really got it in for" him.*fn2
On appeal, defendant raises the following arguments:
THE COURT SHOULD HAVE GRANTED A NEW TRIAL BECAUSE OTHER CRIMES EVIDENCE WAS IMPROPERLY ADMITTED AT TRIAL.
THE COURT SHOULD HAVE GRANTED A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE COURT MUST ENTER A JUDGMENT OF ACQUITTAL BECAUSE THE STATE DID NOT PROVE ITS CASE BEYOND A REASONABLE DOUBT.
THE COURT MUST ORDER A NEW TRIAL BECAUSE THE TRIAL COURT SHOULD HAVE EITHER GRANTED THE DEFENSE MOTION FOR A MISTRIAL OR GRANTED THE DEFENSE MOTION TO BAR EVIDENCE THAT WAS SUBJECT OF A DISCOVERY VIOLATION.
THE COURT MUST DISMISS THE INDICTMENT WITH PREJUDICE BECAUSE THE TRIAL COURT SHOULD HAVE GRANTED A MISTRIAL WITH PREJUDICE.
Having reviewed the record in its entirety in light of the arguments presented on appeal, we conclude that the arguments presented are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are also satisfied that the five-year term was not excessive. State v. Roth, 95 N.J. 334, 364-66 (1984). We comment briefly, however, on Point I.
At the close of the State's case, the prosecutor moved to admit the screwdriver, the keys, and two bent plastic cards in evidence. Defendant did not object.
At the conclusion of the trial, defendant moved for a judgment of acquittal of the burglary and possession of motor vehicle master key charges. The judge denied the motion as to the burglary charge and the jury convicted defendant of this charge. The judge granted the motion as to the master key charge. Defendant did not request at that time to exclude some or all of the physical evidence.
Following conviction, defendant filed a motion for a new trial in which he argued that the admission of the screwdriver and two bent plastic cards found on him at the time of his arrest should have been excluded. He asserts that these items should be considered other crimes evidence and subject to the rigorous analysis required by N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992). The State responded that the items were admissible as res gestae evidence.
Judge Venable held that the items were not unduly prejudicial. She noted that the seized items presented "a full picture of what the defendant had on him at the time of arrest." Accordingly, she denied the motion for a new trial.
As a threshold matter, we note that defendant sought exclusion of these items at the pre-trial conference the day before the trial commenced. His motion was denied. Therefore, presentation of this argument following conviction cannot truly be considered the belated introduction of a new issue. Defendant's failure to object to the introduction of these items at trial may have been informed by the prior ruling.
As to the merits, we are satisfied that the items are not evidence of other crimes, nevertheless the Cofield analysis may be applied to analyze the admissibility of this evidence. State v. Koskovitch, 168 N.J. 448, 482 (2001). Under this analysis, it is doubtful that the screwdriver and bent plastic cards could be viewed as related to the charged crime. Defendant was charged with burglary of a motor vehicle, and according to all of the evidence produced by the State, defendant gained access to the car by a key. There was no damage to the car as would be produced by use of a screwdriver. Moreover, the jury heard testimony that these items were customarily used to gain unauthorized access to a residence. In other words, these items were customarily used as tools to commit a burglary of a residence and not a car.
Although these items should not have been admitted, our review of the record demonstrates that the error does not require a new trial. To be sure, Officer Joy informed the jury that he entered the apartment building at 37 Duncan Avenue after defendant left the building and found two doors "jimmied."*fn3 The jury clearly could have concluded that defendant was the person who "jimmied" those locks and that he had used the screwdriver and bent plastic cards to do so. On the other hand, the jury also knew that the person who entered the Nissan Altima did not use a screwdriver or the plastic cards. Moreover, the evidence that defendant entered the Nissan Altima without permission or authorization of the owner was overwhelming. Defendant was seen in the car and leaving the car. An officer observed the glove box open and items strewn about the front seat. A key found on defendant opened the car. Finally, the owner testified that the glove box was closed and the interior was tidy when he left the car, and he did not know defendant and did not give him permission to enter the car. In short, admission of the items, although erroneous, did not distract the jury from the essential evidence of defendant's guilt.